‘State Subject Law may go. We need to worry’

Be it GST, Statistical Bill or Article 35A, you can see a clear onslaught on the state’s autonomy. There are clear attempts to reduce or undermine the state’s special status

It was a bolt out of the blue when the Supreme Court issued notice to the union and state governments on J&K’s special status on Aug 21, 2015 and set the alarm bells ringing in the restive Valley. The direction was issued in response to a writ petition filed by an NGO ‘We the Citizens’, seeking scrapping of Article 35A. The move was read a clear judicial onslaught on J&K’s special status as the article defines special privileges enjoyed by J&K’s permanent residents in matters related to employment, acquisition of immovable property, settlements and scholarships.

The petitioner contended that the restriction imposed through addition of a new Article 35-A to the Constitution was beyond the President’s powers under Article 370(1)d. “The Constitution can be amended only by the Parliament as per procedure clearly laid out in Article 368,” the petitioner argued.

The petition was almost legal repetition as similar affidavits were filed and dismissed by the apex court thrice - in 1956, 1961 and 1970 - while upholding the powers of the President to pass constitutional orders. But unlike in past, the government of India refuses to take a definite position on the Article this time around, thus making it a wide-open case.

The article was enforced in J&K through the Constitution (Application to Jammu & Kashmir) Order, May 1954 issued by President Rajendra Prasad. It was devised to grant protection to state subject laws that had already been defined during the Maharaja’s rule and notified in 1927 and 1932.

The petitioning NGO enjoys "proximity" with the RSS—the ideological fountainhead of the ruling BJP and other rightwing Hindu outfits—that wants to resolve the Kashmir issue through the sweeping demographic changes. But the only hiccup to achieve that design is Article 35A, which bars settlement of Indians in State.

However, the petition has already unsettled the mood in Kashmir with pro-freedom camp, Opposition and civil society group calling for a people’s movement to defend the State Subject Law. While the chief minister Mehbooba Mufti has warned Delhi of big consequences in wake of any judicial fiddling with Article 35A, her government assailed the locus standi of the NGO to institute the petition, arguing “petitioner is a busybody, a meddlesome interloper, who has filed the instant petition seeking publicity.”

Seeking dismissal of the writ petition, the state government has highlighted that J&K had not acceded to either India or Pakistan but owing to “tribal invasions the Maharaja signed instrument of accession with certain conditions that were accepted by Governor General of India.”

The PDP-BJP state government has relied on two judgements: Puranlal Lakhanpal Vs President of India & Others, (1962) and Sampat Prakash v. State of Jammu and Kashmir and Another, (1969). Both the Judgements endorse the state government’s views on the matter and benefit all State Subjects of the State.

But it’s Narendra Modi-led NDA government’s unclear stand on the issue which remains worrisome for the state.

So far, Delhi has decided not filing a counter-affidavit in the matter. “A conscious decision has been taken by the government of India not to file any counter affidavit in the case because the issues which are raised for adjudication, are pure questions of law,” said K.K. Venugopal, Attorney General for India.

By abstaining from filing a counter-affidavit, Delhi has apparently toed a line of the petitioner, which is a "dangerous" approach, the opposition National Conference warned, and could lead to an "irreparable damage" to the state's special status. After actively collaborated with the Centre on GST, NC said, “the PDP seems to have teamed up with the powers that be yet again to facilitate an assault on Article 35A.”

Amid the politicking, the state government has already been advised by the legal experts to stay extra-cautious while handling the matter in the Supreme Court, where even the J&K High Court rulings were lately questioned, and subsequently snubbed.

On Dec 17, 2016, a SC bench rejected the J&K High Court’s view that the J&K Constitution was equal to the Constitution of India and has “sovereignty” and “sovereign powers”. Many now fear that the ‘Supreme’ justice might also prevail over the Article 35A.

But is there a realistic chance of the Supreme Court striking down Article 35? And if it does, what happens? For answers, Kashmir Ink caught up with the eminent lawyer Zaffar Shah at his busy chamber in Hyderpora, Srinagar. Article 35A is the basic tenet of the constitutional relationship between New Delhi and Srinagar, Shah said, and entertaining any petitions on it is simply a betrayal of the peoples’ faith in constitutional democracy.

Excerpts from the conversation:

First GST, then Statistical Bill and now Article 35-A. As a legal luminary, how do you see this sudden and systematic judicial attack on Kashmir Special Status?

We need to understand that J&K’s special status cannot be tinkered with politically. BJP as a political party was always against it. After coming to power and subsequently realising that political amendment in the constitution regarding this position isn’t possible, they have therefore resorted to judicial process to achieve their motives.

So when you find repetitions being filed - be it on GST or Statistical Bill or Article 35A - you see a clear onslaught on state’s autonomy. They are using courts to keep the controversy alive.

But what can we read into the Supreme Court of India’s notice to State and Union government in a fresh challenge to Article 35A by a little known NGO?

Every person has a right to approach the Supreme Court with a petition. And the subsequent issuance of notice is a matter of judicial practice. It does not mean that Supreme Court has agreed to what the petitioner has said. After getting the counter-petition, it’s up to Supreme Court to take a view on the matter. If the court finds that the petition is the repetition of the points already been adjudicated by the court, then I am confident that it will dismiss the petition.

But if the court is of the opinion that some other dimensions of the controversy needs to be examined, then the court might proceed further on the matter.

But despite this notice, Delhi has sought a “larger debate” on the “very sensitive” issue than filing an affidavit on the matter in the court. Does BJP government’s stand tell us that it wants to weaken J&K’s special status as promised in elections?

See, the stand taken by the Attorney General of India before Supreme Court has made Delhi’s position uncertain on the matter. Normally, filing an affidavit means clearing its position in a legal matter. By not filing the affidavit, the government of India has kept its options open and made the issue uncertain. It also means that by abstaining from filing an affidavit, they have committed themselves to a position that Article 35A should or shouldn’t remain.

We will have to wait and watch, which way the cat jumps, as and when the petition comes for hearing before the court.

Although the state government has filed a counter-petition in the Supreme Court, but the opposition National Conference is saying that until the government of India decides to defend the Article 35A, the State government’s stand wouldn’t help since the Article was part of Constitution of India.

It’s true that the state government has already filed a very short counter-petition with a purpose to inform the court that the issue raised by the writ petitioners already stands decided and concluded by the earlier decisions of the court. The state government has stated in its affidavit that, should a need arise, they will file a detailed affidavit. That is a stand of the state government.

Now, there is a paradox. State government is the entity of two ideologically opposite parties, whereas such is not the position of the central government. The dominant party, even if they call themselves as NDA, is BJP.

So, it’s BJP at Centre which hasn’t filed the affidavit. Being their partner in a coalition government, the PDP need to be extra-cautious to ask BJP why the affidavit wasn’t filed and why the central government didn’t take a stand.

Previously when such petitions were filed, or some other provisions of the constitution were questioned, at that time, the central government did take up a definite, clear-cut stand before the court. But this time, the response of the central government has made the position ambiguous.

And therefore, legally, National Conference is right when it said that the position of Central Government is important in such a judicial matter.

But what does this judicial tinkering with Article 35A mean for the Special Status of Jammu and Kashmir?

You see, we need to appreciate and understand that when Constitution of India was being framed, at that time the state of Jammu and Kashmir was constitutionally protected with respect to a special position. Now, to provide constitutional safeguards to that position, there are many provisions in the Constitution of India which have been modified to be applicable.

Article 35 is not the part of Constitution of India, but it has been applied by the president of India under Article 370 to the state of J&K in recognition of its special status and position.

There are two reasons why this special position has been granted to J&K: one, because of the State’s limited nature of accession with the union of India and second, the international dimension of the problem. These two provisions are recognised and therefore the state has been granted special position.

While recognising these provisions, Article 35A clearly provides for the protection of the laws of the state, pertaining to permanent residence, employment, acquisition of immobile property and scholarship by the permanent residents of J&K.

Some people are already debating that eroding this article will leave nothing left in J&K’s Special constitutional status.

People who are saying so aren’t incorrect. If this article is abolished or declared invalid, it would mean that laws related to permanent residency can no longer exist. It would also mean that non-permanent residents can acquire properties in the State and the employment opportunities available to people of Jammu and Kashmir will also be available to the citizens of India. Therefore, it will have a devastating effect on the present status of Jammu and Kashmir.

The question is, can they do it?

See, the people who have approached the court have taken up the issue which is slightly hyper-technical. Their case is that the Article 35 is not the part of the constitution of India. But at the same time, the president of India has made a special provision for the people of the state of Jammu and Kashmir. So, their contention before the court is, whether the president of India can make or create a new provision for the J&K, which is not the part of Constitution of India. Now, much depends upon the government of India and the kind of stand it will take on it.

But isn’t the government of India’s position already favouring the petitioners?

It’s still unclear how BJP is supporting the petitioners. What’s also unclear is whether the petitioners are bona-fide people or sponsored litigators. But giving its timing, soon after BJP came to power in Centre, it appears to be a sponsored writ-petition aimed at to achieve political motive. So, yes, the political posturing clearly makes the Centre a party to it.

That means the State needs to worry?

Yes, the state needs to worry. As I already said, there involves a peculiar paradox. While the state government in which BJP is a partner has filed a counter-affidavit in Supreme Court against the petition, but the BJP-ruled Centre has decided against it. Therefore, State government needs to be cautious. It needs to raise this question in their coordinate communities, highlighting two different stands of BJP on the same issue.

So, do you see the Article 35A meeting the fate of GST and Statistical Bill?

Given the nature of things, Supreme Court should dismiss the petition. But we need to know, the judicial decisions are always unpredictable. The state government has to work hard to put the proper arguments in the court.

The other stakeholders of the State who want this status need to make representations before the court. The state can only put up arguments. But whether or not they can do it, remains in the hand of central government.